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Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 15th September, 2008 (amended 27th June, 2019); Notice of Motion dated 13th May, 2019· [2020] KEELC 2265 (KLR)

Mavoloni Company Ltd v Land Registrar - Thika & 14 others [2020] KEELC 2265 (KLR)

Environment and Land Court
5 June 2020
1,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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In Kenya, you must ask the Land Registrar to remove a land restriction before going to court — skipping that step makes your case fail.

What this practically means

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Executive summary

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By a Notice of Motion dated 13th May, 2019, the Applicant, an administrator and beneficiary of the Estate of Peter Musyoka Maina, sought removal of a restriction lodged on 23rd June, 2011 by Mavoloni Company Limited against Title No. Gatuanyaga/Ngoliba Block 2/640, plus costs. The search had revealed a restriction that no dealings occur until High Court Civil Suit No. 142 of 2008 was heard and determined. She argued that the injunction applications underlying the matter had been dismissed by Okongo J on 17th February, 2017, and that maintaining the restriction was inequitable and prejudicial to the estate's distribution. The Plaintiff's Chairman opposed, contending the application was incompetent because only the Land Registrar can lift a restriction under section 78(1) of the Land Registration Act and no notice had been issued to the Registrar. The Plaintiff also relied on section 70 and argued the Applicant had not exhausted the procedure in section 73(2), (3) and (4), citing Mwangi Rukwaro and Lalji Bhimji Senghani. The 5th Defendant detailed the background sale of 139 plots and related litigation. Angote J distinguished inhibitions, cautions and restrictions, held that section 78 requires an applicant to move the Registrar first before resorting to court, and found the Applicant incompetent and lacking locus standi, being a stranger to the suit. The application was dismissed with costs to the Plaintiff and the 5th Defendant.

Key legal issues

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01

Distinction between inhibition, caution and restriction under the Land Registration Act

Holding

These are terms of art that cannot be used interchangeably: an inhibition is granted by the court, a caution is registered by a person claiming a right over land, and a restriction is registered by the Land Registrar

Reasoning

The court distinguished the three instruments by reference to their source and purpose. An inhibition issues from the court; a caution is lodged by a person claiming a contractual or other right over land; a restriction is registered by the Registrar either suo moto or on application, for purposes such as preventing fraud or for other sufficient cause, for a particular period or until a specified event or further order.

p. 3
02

Procedural sequence for removal of a restriction under section 78

Holding

The Registrar must be moved first under section 78(1); the court may only order removal under section 78(2) upon application of an affected proprietor after notice to the Registrar, and after the Registrar has declined to act

Reasoning

Section 78(1) empowers the Registrar, on application by an interested person or on his own motion and after hearing affected parties, to remove or vary a restriction. Section 78(2) permits the court, on application of an affected proprietor upon notice to the Registrar, to order removal. The court held the statutory scheme requires the Registrar's process to be exhausted before resort to the court; sidestepping section 78(1) renders the application incompetent and deprives the court of jurisdiction.

p. 3
03

Locus standi of a non-party applying within an existing suit

Holding

A non-party cannot apply within a suit for lifting of a restriction; she must either join the suit as an interested party or file a separate suit

Reasoning

The Applicant, an administrator of the estate of the registered proprietor of the restricted parcel, was neither the deceased proprietor nor a party to the Originating Summons between the Plaintiff and the Defendants. The court held that a person aggrieved by a Registrar's restriction who is not party to pending litigation must first seek joinder as an interested party or institute a separate suit for lifting of the restriction; failing both, the application must fail.

p. 3

Legal principles established

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  • Before moving the court for lifting of a restriction, a party must first apply to the Land Registrar under section 78(1) of the Land Registration Act; the court's jurisdiction under section 78(2) is only triggered after the Registrar has declined to lift the restriction
  • A person who is not a party to a suit has no locus standi to apply within that suit for lifting of a restriction; such a person must join the suit as an interested party or file a separate suit

Court orders

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  1. 1.The Application dated 13th May, 2019 is dismissed
  2. 2.Costs of the application to the Plaintiff and the 5th Defendant

Authorities

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Legislation

  • Land Registration ActSection 70
  • Land Registration ActSection 73(2), (3) and (4)
  • Land Registration ActSections 68 and 71
  • Land Registration ActSection 76
  • Land Registration ActSections 78(1) and 78(2)

Cases cited (2)

  • Mwangi Rukwaro & Another v Land Registrar
    (2019) eKLR
  • Lalji Bhimji Senghani Buliders & Constructors v City Council of Nairobi
    (2012) eKLR
Jurisdiction invoked
Sections 73, 76 and 78 of the Land Registration Act (No. 3 of 2012)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mavoloni Company Ltd v Land Registrar - Thika & 14 others [2020] KEELC 2265 (KLR)", Case Analysis (2020). Originating Summons dated 15th September, 2008 (amended 27th June, 2019); Notice of Motion dated 13th May, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2265/eng@2020-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.